Recent CF Case Law

Recent CF Case LawComputer Forensics and Electronic

Discovery Conference 2008

Chris Hallgren

12 Years as software developer, implementation consultant and project managerStarted doing computer forensics in 2002Member of HTCIAProfessional certificate in computer forensics from Oregon State University and NTITrained in EnCase and AccessData

1/9/2008 2Copyright © 2008 Helios Data Forensics

Presentation Overview

5 categories of casesDiscoverabilityProduction of DataCostsSpoliationSanctions

1/9/2008 3Copyright © 2008 Helios Data Forensics

Selection of Cases

Notable increase in CF-related cases recentlyLooking at recent casesNot exhaustive

1/9/2008 Copyright © 2008 Helios Data Forensics 4

Goals

Increase awarenessOffer some simple lessons (hopefully)


Discoverability

Kasten v. Doral Dental USA, LLCDispute between LLC and one of its membersTrial court determined email were not “company records” or “documents”


Discoverability

From Trial Court“I guess I have the most problem with the e-mails. They're not documents or records. They're just communications. It's like notes or a telephone call. I mean it's —— e-mails in my view are certainly entirely different…”“I don't think that emails fall under the definition of documents. They just don't. They're communications. It's like asking someone to provide a summary of a telephone conversation. It may be memorialized electronically, but it clearly in my view is not a document…”


Discoverability

Kasten v. Doral Dental USA, LLCWisconsin Supreme Court reversed“For most businesses, e-mail has all but replaced hardcopy correspondence and memoranda. […] A categorical holding that e-mail is never a "Company document" under Wis. Stat. § 183.0405(2) would be blind to the day-to-day volume of e-mail in the modern business setting and the business-related purposes for which e-mail is used.


Discoverability

Koninklijke Philips Elec. N.V. v. KXD Tech., Inc.

Trademark dispute – defendant argued against having to produce electronic data because it was “damaged” and not availableCourt was not persuaded – warned that it could conduct a computer forensic examination of computers and imposed sanctions based on investigation


Discoverability

Koninklijke Philips Elec. N.V. v. KXD Tech., Inc.

$3.5 million in sanctions30-day incarceration for company’s executive for failure to pay sanctions


Discoverability

LessonSome courts get it and others still don’tYou may have to educate


Production of Data

Williams v. Taser Int’l Inc.Wrongful death suit – parties could not agree on production of some ESICourt disagreed with both sides and imposed its own solution (down to specific search terms) with a relatively short timeframeCourt also ruled that Taser’s hiring and training of an IT employee to manage discovery process was not adequate


Production of Data

Thielen v. Buongiorno USA, Inc.Dispute involving the sending of text messages to a cell phone – plaintiff argued against having to produce his computerCourt ordered examination of computer by a CF expert


Production of Data

LessonFailing to agree on electronic discovery can result in the court imposing its own solutionSolution might not be preferred by either side


Costs

PSEG Power New York, Inc. v. Alberici Constructors, Inc.

Plaintiff produced emails in electronic format but, as a result of a technical problem, attachments were not properly associated with their corresponding email211,000 hard-copy pages (750 GB of data)Court ordered plaintiff to reproduce evidence in proper format and at plaintiff’s cost


Costs

Best Buy Stores, L.P. v. Developers Diversified Realty Corp.

Defendant argued that some data was not reasonably accessible because of costJudge disagreedDefendant produced cost and time estimates and requested extensionCourt denied extension


Costs

LessonBe conscientious in production of electronic dataParties are expected to reasonably preserve data in a way that allows for productionTechnical glitches or difficulties will not protect parties from production costs


Spoliation

Teague v. Target Corp.Padgett v. City of Monte Sereno

“Crashed” hard drive resulted in lost dataCourt ordered sanctions


Spoliation

Thompson v. Jiffy Lube Int’l, Inc.“Crashed” hard drive resulted in lost data

Small amount of dataData recovery had been attemptedDrive was presumably still available

Court denied sanctions at that timeIssue may be revisited


Spoliation

LessonCourts considering efforts taken to restore data and/or preserve hardware even if it has “crashed”


Sanctions

Qualcomm, Inc. v. Broadcom Corp.Patent Infringement suit – plaintiff and plaintiff’s counsel “participated in an organized program of litigation misconduct and concealment…”Qualcomm lost case – patents unenforceableQualcomm may have to pay defendant’s attorneys’ fees Attorneys may be personally sanctioned


Sanctions

Wingnut Films, Ltd. v. Katja Motion Pictures Corp.

Contract dispute – defendant did not fully comply with discoveryDefendant ordered to retain an outside vendor to fulfill discovery$125,000 sanction for attorneys’ fees and other expenses


Sanctions

LessonElectronic evidence can no longer be avoidedLess-than-diligent efforts can result in severe penalties


Summary

Electronic Information – You can’t avoid itSome people get it, some don’t, so be prepared for eitherBe thorough during discovery – manage client, vendors, etc.Try to come to agreement with opposingside


Conclusions

Lessons are simpleInterpretation and implementation will be more difficult


References

Electronic Discovery and Computer Forensics Case Law, http://www.krollontrack.com/legalresources/topic.pdfKasten v. Doral Dental USA, LLC, 2007 WL 1791226 (Wis. June 22, 2007).Koninklijke Philips Elec. N.V. v. KXD Tech., Inc., 2007 WL 879683 (D. Nev. Mar. 20, 2007).Williams v. Taser Int’l Inc., 2007 WL 1630875 (N.D.Ga. June 4, 2007).Thielen v. Buongiorno USA, Inc., 2007 WL 465680 (W.D. Mich. Feb. 8, 2007).PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670 (N.D.N.Y. Sept. 7, 2007).Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 333987 (D. Minn. Feb. 1, 2007).


http://www.krollontrack.com/legalresources/topic.pdf

References (cont.)

Teague v. Target Corp., 2007 WL 1041191 (W.D.N.C. Apr. 4, 2007).Padgett v. City of Monte Sereno, 2007 WL 878575 (N.D. Cal. Mar. 20, 2007).Thompson v. Jiffy Lube Int’l, Inc., 2007 WL 608343 (D. Kan. Feb. 22, 2007).Qualcomm, Inc. v. Broadcom Corp., 2007 WL 2900537 (S.D.Cal Sept. 28, 2007).Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D.Cal. Sept. 18, 2007).


Date post:	03-Feb-2022
Category:	Documents
Upload:	others
View:	2 times
Download:	0 times

Recent CF Case Law

Documents